Amagwula v R

[2019] NSWCCA 156

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Amagwula v R [2019] NSWCCA 156
Hearing dates:	8 February 2019
Decision date:	19 July 2019
Before:	Basten JA at [1]; Button J at [68]; Lonergan at [407]
Decision:	(1)   Leave to appeal to argue ground 2 granted. (2)   Appeal dismissed.
Catchwords:	CRIME – appeal against conviction – supply of prohibited drugs – unrepresented accused at trial – pleas of not guilty not personally entered by accused on arraignment before the jury panel – whether trial a nullity as a result – whether trial so unfair as to constitute a miscarriage of justice – both grounds dismissed
Legislation Cited:	Criminal Appeal Act 1912 (NSW), ss 5, 6 Criminal Procedure Act 1986 (NSW), ss 16, 20, 130, 154, 155, 157 Criminal Procedure Amendment (Pre-Trial Disclosure) Act 2001 (NSW), s 63A Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29 Evidence Act 1995 (NSW), s 138
Cases Cited:	Caruso v R [2012] VSCA 138 Dupas v The Queen (2010) 241 CLR 237 Fell v Chenhall [2018] NSWSC 1574 Fell v Chenhall [2018] NSWCA 260 Frawley (1993) 69 A Crim R 208 Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 GG v The Queen (2010) 79 NSWLR 194; [2010] NSWCCA 230 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109 Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA330 Kamm v R [2007] NSWCCA 201 Libke v R (2007) 230 CLR 559; [2007] HCA 30 MacPherson v R (1981) 147 CLR 512 Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28 Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Reg v Ellis (1973) 57 Cr App R 571 Reg v Williams [1976] 1 QB 373 R v Apostilides [1984] HCA 38; (1984) 154 CLR 563; R v Birlut (1995) NSWLR 1 R v Boyle [1954] 2 QB 292 R v Ellis (1973) 57 Cr App Rep 571 R v Halmi (2005) 62 NSWLR 262; [2005] NSWCCA 2 R v Heyes [1950] 2 All ER 587 R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 R v Kepple [2007] EWCA Crim 1339 R v Nicolaidis (1994) 33 NSWLR 364 R v Talia [1996] 1 VR 462 R v Williams (Roy) (1977) 64 Cr App Rep 106; [1978] QB 373 Van Beelen v The Queen (2017) 91 ALJR 1244; [2017] HCA 48
Texts Cited:	Halsbury’s Laws of England, vol 27 LexisNexis Butterworths, Criminal Practice & Procedure NSW Sir James Fitzjames Stephen, A History of the Criminal Law of England (1883, Macmillan and Co), vol 1 Sir Stephen Mitchell QC, Archbold: Criminal Pleading, Evidence & Practice (67th ed, 2019, Thomson Reuters) Watson, Blackmore and Hosking, Criminal Law New South Wales William Blackstone, Commentaries on the Laws of England (2016, Oxford University Press)
Category:	Principal judgment
Parties:	Chidi Gozie Amagwula (Appellant) Regina (Respondent)
Representation:	Counsel: E Ozen SC (Appellant) H Roberts (Respondent)   Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/106185
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 20 April 2018 Before: Judge Colefax SC File Number(s): 2012/106185

judgment

1. BASTEN JA: Mr Amagwula (the appellant) seeks to appeal from his convictions on four counts of supplying a prohibited drug contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW). There were two grounds of appeal: ground 1 alleged that the trial was a nullity because the appellant had not been properly arraigned; ground 2 alleged a miscarriage of justice arising from events occurring in the course of the trial.

Factual background

2. The charges laid against the applicant arose out of a search of his residence undertaken on 4 April 2012. Police located, in the ceiling of the kitchen, a red “makeup bag” wrapped in plastic. The makeup bag was secured with a padlock. Inside the bag was a set of electric scales and a number of packages wrapped in plastic. The appellant’s fingerprints were later found on a number of resealable plastic bags within the red makeup bag. Three sums of money were found in the main bedroom, namely $US6,637, $A1,300 and $1,420 in South African rand. The drugs contained in the red makeup bag formed the basis of four counts of deemed supply, namely:

Count 1:   a commercial quantity of cocaine (771gms).

Count 2:   a commercial quantity of heroin (275gms);

Count 3:   an indictable quantity of methylamphetamine (213gms), and

Count 4:   an indictable quantity of methorphan (198gms).

3. The other occupants of the residence were the appellant’s wife and his two young children. The appellant’s wife denied (i) having seen the red makeup bag before it was located by police; (ii) having put the bag or any other item through the manhole in the kitchen ceiling, and (iii) having seen the appellant place anything through the manhole in the kitchen ceiling.

4. It is convenient to address aspects of the procedural history by way of background to ground 1 in the notice of appeal.

Procedural history

5. Ground 1 alleged that the trial was a nullity because the applicant was not properly arraigned because he had not personally answered “not guilty” as each charge was read to him. The factual premise for this submission was that when the charges were read out the judge directed that a plea of not guilty be entered in relation to each count. At that stage Mr Amagwula was standing at the bar table and was not in the dock. He had already addressed the Court, seeking an adjournment on the basis that he was unrepresented and could not get a fair trial. In the course of addressing the Court, he stated: [1]

“I am innocent in this matter. All I need is a chance in fairness to defend myself properly.”

1.    Tcpt, 23/10/17, p 3(37).

6. The judge having delivered a brief judgment rejecting the adjournment application, there was discussion as to the expression of the charges in the indictment (which will be noted below) and the judge stated: [2]

“Mr Amagwula, I'm going to ask my associate to arraign you on this indictment. Because you're not legally represented I won't ask you personally to enter a plea. I will direct that pleas of not guilty be entered in relation to each of them after you are arraigned.”

That happened, in the manner the judge had indicated, Mr Amagwula having indicated no dissent.

2.    Tcpt, p 5(18).

7. The judge then explained to Mr Amagwula, in terms commonly used to self-represented parties, how the trial would proceed and how, procedurally, the accused should conduct himself. There was a short adjournment while the jury panel was assembled in court. The arraignment process was repeated before the jury panel. Again the judge directed a plea of not guilty be entered in respect of each count as it was read out.

8. It is helpful to set out some of the earlier procedural stages in the case. The present relevance of the procedural history is with respect to ground 1; it depends upon the Director’s argument that ground 1 is without substance because, to the extent that the failure to require the appellant to personally indicate his plea, that had in fact happened with respect to a previous form of the indictment in identical terms, with the exception of a missing letter from the description of the drug in count 4.

9. The procedural history is also relevant to ground 2, which alleged a miscarriage based on the lack of a fair trial through the applicant being unable to conduct his defence unrepresented. That ground did not in terms challenge the refusal of the trial judge to adjourn the trial, but, for example, in ground 2(ii), alleged a miscarriage arising from “the refusal to arrange for Mr Ozone to attend court to be examined and cross-examined”. The person identified as “Mr Ozone” was a police informant who had been involved in a separate charge against the appellant, which had been separated from the present trial. It appeared in the course of the trial that the appellant’s defence was that the drugs found on his premises on 4 April 2012 had been “planted” there by Mr Ozone.

10. In considering an application to vacate the hearing on 25 October 2017, the trial judge referred to a wide ranging police undercover investigation that commenced in 2011. At or soon after the time of his arrest (on 4 April 2012) the appellant was charged with having been involved on 19 January 2012 in the supply of a commercial quantity of methylamphetamine. That charge was count 1 on an indictment presented in October 2012 and was referred to as “the January offence”. The other four counts on the indictment were apparently in similar, if not identical, terms to counts 1-4 of the indictment on which the appellant was tried in October 2017. At some point in mid-2014 count 1 was separated from the present counts. It involved a co-accused. The trial on count 1 took place in September 2014, resulting in guilty verdicts in relation to both the appellant and the co-accused. As will be considered shortly, the appellant was represented throughout the proceedings up to his sentencing in May 2015, when Norton DCJ imposed a non-parole period of 4 years 2 months 12 days, to date from 4 April 2012, the appellant having been in custody, bail refused, since the time of his arrest.

11. Following the sentencing for the January offence, the indictment, now limited to the offences of 4 April 2012, was listed for trial on 25 May 2015 before Sides DCJ. The appellant was represented by counsel, who applied to vacate the trial on a number of grounds. The prosecution opposed the application, but the matter was adjourned to 4 April 2016. The matter was originally listed before Colefax DCJ on that date, but was referred to Marien DCJ and a further attempt was made to commence the trial. However, upon the appellant’s counsel and solicitor seeking leave to withdraw for ethical reasons (which was granted), the trial date was again vacated. A further date was fixed by Colefax DCJ, namely 6 February 2017. That date was confirmed by Sides DCJ on 5 December 2016, following a case management hearing. The trial was to be given priority on that date.

12. On 6 February 2017, Culver DCJ had the appellant arraigned. However, counsel and solicitor had withdrawn earlier that morning and the appellant appeared unrepresented. The charges were read and the appellant responded “not guilty” to each count. [3] The appellant sought an adjournment, which was granted until the following day. The reason given on 6 February by counsel seeking to withdraw was that the appellant had refused to sign instructions which would allow them to conduct a defence. [4]

    3.    Tcpt, 06/02/2017, p 3.

    4.    Tcpt, p 10.

13. On 7 February the matter was listed before Sides DCJ who declined to hear further argument as to a vacation of the trial, but apparently adjourned the matter to 9 February to allow the appellant to provide a list of witnesses he wanted subpoenaed to give evidence on his behalf.

14. On 9 February Armitage ADCJ gave the appellant “one last chance” to see if he could obtain legal representation and stood the matter over to 13 February.

15. On 13 February the appellant’s previous counsel appeared, but following a conference with the appellant declined to appear further. [5] After discussion, the trial was again vacated and listed for 16 October 2017. There were further attempts at case management, the appellant being unrepresented on each occasion. On 17 October, the matter was listed before Bennett DCJ who gave directions for further documents to be supplied to the appellant and listed the matter to commence on 23 October 2017 before Colefax DCJ.

    5.    Tcpt, 13/02/2017, p 4.

16. After recounting those factors, the appellant’s counsel in this Court conceded that the appellant “was given ample opportunity to try and arrange representation at public expense.” He also accepted that there was “no suggestion that he was subject to any unfairness merely because he was without legal representation.” It was entirely understandable, given the history of the matter, that the trial judge refused a further application to vacate the hearing and that there was no challenge in this Court to that refusal.

Ground 1 - arraignment

17. The question raised by ground 1 was whether the decision of the trial judge to direct that pleas of not guilty be entered for the appellant rendered the trial a nullity. The ground thus “involves a question of law alone” and the appeal may be brought as of right. [6]

    6. Criminal Appeal Act 1912 (NSW), s 5(1)(a).

18. The appellant was arraigned on an indictment dated 23 October 2017. There was no challenge to the validity of that indictment. The appellant had earlier been arraigned on an indictment dated 2 February 2017, before Culver DCJ, for the purpose of giving pre-trial directions. There was no challenge to the validity of that indictment, nor to the process of arraignment on that occasion, when the appellant had personally entered pleas of not guilty to each charge. On one limb of the Director’s defence of the trial process, reliance was placed upon the February arraignment as being a sufficient and proper arraignment for the purposes of the trial. On that approach, the subsequent arraignment on 23 October, even if flawed, was otiose and had no legal consequence. In R v Janceski, [7] a case where the accused had been re-arraigned at the commencement of a trial on an invalid indictment, Howie J, referring to an earlier indictment, stated, “[t]hat indictment had not been spent because the trial upon it concluded without verdict.” He further noted:[8]

“Proceedings for an offence charged on an indictment can only be brought to a conclusion in one of three ways: by verdict after trial, by plea of guilty or by entry of a nolle prosequi: R v Howard. [9] As none of these events occurred, the proceedings commenced by that indictment were still on foot when the appellant came before Tupman DCJ [for the impugned trial]. Had the presentation of the [later, invalid] indictment caused some unfairness to the accused, the court could have stayed it and thereby required the Crown to proceed on the earlier indictment: R v Harris (No 2). [10] ”

7. (2005) 64 NSWLR 10; [2005] NSWCCA 281 at [221].

8. Ibid.

9. (1992) 29 NSWLR 242 at 247.

10. [1990] VR 305.

19. There are difficulties, perhaps not insuperable, in adopting that approach in the present case. First, as in Janceski, the prosecutor did not rely upon the earlier (February) indictment, but presented a new document to the court. The consequence of such a process, which is the general practice in this State, is unclear. Now that pre-trial case management is the norm, it is necessary for an accused to be arraigned on an indictment before orders are made and directions given. Accordingly, arraignment is an early step in the process. Why, in the absence of amendment, the Director considers it necessary, or indeed appropriate, to present a further indictment on the same charges at the commencement of the trial is unclear. Where there is an unconcluded proceeding on foot, it might be thought to be an abuse of process, absent a statutory requirement, to commence a second proceeding on the same charges. However, the matter need not be pursued, because that was not this case.

20. The second difficulty in treating the trial as having proceeded on the February indictment is that the prosecutor expressly identified the October indictment as an amended document. The amendment was in fact trivial: in the February indictment the drug in count 4 had been identified as “methorpan”, a typographical error which was corrected in the October indictment to read “methorphan”. [11]

    11.    Tcpt, 23/10/17, p 4(5).

21. With respect to the amendment of an indictment, the Criminal Procedure Act 1986 (NSW) provides:

20   Amendment of indictment

(1)   An indictment may not be amended after it is presented, except by the prosecutor:

(a)   with the leave of the court, or

(b)   with the consent of the accused.

(2)   This section does not affect the powers of the court under section 21.

(3)   For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.

22. When the prosecutor presented the amended indictment, the judge required that the amendment be initialled by a person with authority to make the amendment. It is clear that the prosecutor had leave of the Court pursuant to s 20(1)(a) to make the amendment.

23. In terms of the three events which may complete the proceedings on an indictment, noted by Howie J in Janceski, amendment is not identified. That is presumably because the original indictment remains on foot, following amendment.

24. The third difficulty with adopting the submission that the arraignment in February 2017 was sufficient is the requirement of the Criminal Procedure Act that following an earlier arraignment, there is to be re-arraignment “when the jury is empanelled”. Thus, s 130 provides:

130   Trial proceedings after presentation of indictment and before empanelment of jury

…

(2)   The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial.

(3)   If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled:

(a)   the proceedings are part of the trial of the accused person, and

(b)   the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial.

25. Thus, where the challenge is not to the indictment, but to the validity of the arraignment, the further arraignment was required by statute. Accordingly, it is that arraignment which should be addressed for the purposes of ground 1 of the appeal.

26. As noted by Beazley JA in GG v The Queen,[12] the term “arraignment” is not defined in the Criminal Procedure Act. Archbold, Criminal Pleading, Evidence & Practice [13] states that the process of arraignment involves:

“… (1) calling the defendant to the bar by name; (2) reading the indictment to him; (3) asking whether he is guilty or not …. Where an indictment contains several counts, each count should be put to the defendant separately, and he should be asked to plead to each count as it is read to him. … Except in a few special cases (e.g. where the defendant is a deaf mute, or refuses to plead) the initial arraignment must be conducted between the clerk of the court and the defendant. The defendant must plead personally – the plea cannot be made through counsel or another person on his behalf ….”

12. (2010) 79 NSWLR 194; [2010] NSWCCA 230 at [62] (Buddin J and Barr AJ agreeing).

13.    (2019, Thomson Reuters) at [4-167].

27. The direction by the judge that a plea of guilty be entered with respect to each count did not follow this course. However, it does not follow that everything which occurred thereafter was a nullity. In effect, it is the consequence of the process adopted by the trial judge which is at the heart of ground 1.

28. First, it is clear that the requirement for re-arraignment is provided by statute and the consequence of the precise procedure for arraignment under the general law not being followed will depend, at least in part, on the proper construction of the statutory provision. That construction should depend upon the apparent purpose of requiring re-arraignment, in the context of a criminal trial. [14]

    14. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [93].

29. Section 154 of the Criminal Procedure Act identifies the effect of a plea of not guilty on arraignment:

154   Plea of “not guilty”

If an accused person arraigned on an indictment pleads “not guilty”, the accused person is taken to have put himself or herself on the country for trial, and the court is to order a jury for trial accordingly.

30. As noted by Howie J in Janceski, answering to the indictment on arraignment has that effect, whether the arraignment takes place before the jury panel or not. [15] Howie J also noted:

“[220]   There is authority that there can be a valid trial even without an arraignment provided that the accused has indicated his intention to plead not guilty to the charge before the court: R v Williams [1976] 1 QB 373. In that case the Court of Appeal held that the accused had the right to waive the right to be arraigned. There the jury was empanelled on the mistaken belief that the accused had on an earlier occasion pleaded not guilty on arraignment. However, it should be noted that neither the Court of Appeal nor the trial court apparently believed that it was necessary for the accused to be re-arraigned before the jury panel where there had been an earlier arraignment.” [16]

15.    Janceski at [218]-[219].

16.    Williams remains authority for that proposition in the 2019 edition of Archbold: at [4-167].

31. The procedure adopted in Williams was further from usual practice than is the present case. A month before his trial, the accused had appeared to stand trial, and had been called upon to enter the dock and identify himself, which he did. Counsel then sought an adjournment and neither the arraignment nor the trial proceeded on that day. The statement by counsel for the defendant involved “a clear intimation that the defendant intended to contest the charge and that he proposed to plead not guilty to the indictment.” [17] A month later the trial was relisted, and proceeded directly to the process of empanelling the jury. That being done, the clerk read out the terms of the indictment and continued: [18]

“To this indictment he has pleaded not guilty, and it is your charge to say, having heard the evidence, whether he is guilty or not guilty.”

17.    Williams at 376H.

18.    Williams at 377E.

32. Shaw LJ, speaking for the Court (Scarman and Shaw LJJ and Nield J) then observed:

“Thus the defendant heard the indictment read out. He heard also the statement that he had pleaded not guilty to it. No one present, other than the defendant himself, could have known that the assertion that he had pleaded not guilty out of his own mouth was not in accord with the facts. However the defendant made no demur. If any question had arisen to his mind, he would no doubt have dismissed it as being of no practical consequence. After all it was his intention and desire to enter a plea of not guilty to the charge and to be tried by the jury.”

33. On appeal, Mr Williams took the point that “the omission of any formal arraignment, with the consequence that no plea was taken, is fatal to the validity of the trial.” [19] He relied upon Reg v Ellis:[20] that case was distinguished in Williams, the Court stating: [21]

“There the critical issue was whether a plea of guilty tendered by counsel and not by the accused himself could be regarded as an effective and binding plea. It is of course plain to see why it cannot and should not be so regarded. It is a plea which is self-incriminatory and self-incrimination cannot be vicariously accomplished. Any contrary view would be fraught with manifest dangers. Injustice rather than justice would the likely products of a principle which permitted indirect delegated confessions of guilt.”

19.    Williams at 378C.

20. (1973) 57 Cr App R 571.

21.    Williams at 378F.

34. The Court in Williams took a different view of a plea of not guilty which is “vicariously offered or tacitly conveyed”, noting that it was “difficult to conceive what possible prejudice to an accused person could derive from such a procedure.” [22] That plea contained no confession of guilt; quite the contrary.

    22.    Williams at 378-379.

35. The Court then extracted a passage from Sir James Fitzjames Stephen, History of the Criminal Law of England, to the following effect: [23]

“For reasons which it is now difficult to represent clearly to the mind, it seems to have been considered in early times that criminals accused of felony could not be properly tried unless they consented to the trial by pleading and ‘putting themselves on the country.’ The prisoner was first required to hold up his hand, and having done so, or having otherwise owned himself to be the person indicted, the substance of the indictment was stated to him, and he was asked the question, ‘how say you, are you guilty or not guilty?’ If he said, ‘not guilty,’ the answer was ‘culprit, how will you be tried?’ to which the prisoner had to reply ‘by God and my country.’ Sacramental importance was attached for centuries to the speaking of these words.”

23.    (1883) Vol 1, p 297.

36. The Court then noted that “[i]nsistence on an express plea of not guilty by the defendant himself is no longer a necessary safeguard of justice where that is the intended plea and where the ensuing proceedings are precisely what they would have been if the accused had himself made the plea in plain terms.” [24] The Court also referred to United States authority for the proposition that arraignment and even the plea may be waived in criminal cases. [25] The Court adopted that position “as being consonant with the law of England as well as with good sense for no detriment can ensue to a defendant from the application of these principles.” [26] The history of arraignments was recounted in similar terms by the Victorian Full Court in R v Talia. [27]

    24.    Williams at 379F.

    25.    Williams at 382.

    26.    Williams at 382D.

    27. [1996] 1 VR 462 at 472 (Winneke P, Charles JA and Southwell AJA).

37. The requirement for arraignment is now found in statute (Criminal Procedure Act, s 130(3)), but the procedure for arraignment is not specified. It may be assumed, therefore, that the legislature intended no change in the manner of conducting an arraignment under the general law. Although it was and remains common practice to require the accused to plead personally to each count in an indictment, under the general law, a failure in that regard did not vitiate the ensuing trial, so long as it was clear that the accused knew the contents of the indictment and in fact intended to plead not guilty.

38. The only other function of a plea being taken before the jury panel (and it had to be taken before a jury was empanelled as that would not occur if the plea was guilty) was to ensure that the jury understood that the accused had placed himself in their hands. However, that function was served by the judge stating, immediately the arraignment had been completed: [28]

“Members of the jury panel, the trial which has just commenced by the reading of those counts on the indictment, you would have heard that I directed that pleas of not guilty be entered. I made that direction because the accused in this case, Mr Amagwula, is not legally represented. Normally where a lawyer was appearing for an accused person, after that person had received legal advice from such a representative, the person would have the opportunity of entering the plea of guilty or not guilty, but we have a practice in our courts where a person is not legally represented and where the proceedings have got to this stage that the trial judge direct that pleas of not guilty be entered on behalf of the accused person.”

28.    Tcpt, 23/10/17, p 10(22).

39. Whether or not there was such a practice and whether or not it was an appropriate practice, it is clear that the jury were left in no doubt as to the nature of the charges and the plea of not guilty.

40. Applying the principles in Williams, the expression of the plea by the accused is no longer a necessary safeguard of justice; the plea was intended and the ensuing proceedings were precisely what they would have been had the plea been made by the accused himself. Furthermore, the accused had in fact expressly made such a plea to an earlier indictment in identical terms; his intention to protest his innocence had been reiterated minutes before the October arraignment in an exchange with the trial judge, which indicated an unequivocal intention to plead not guilty. Finally, the step taken by the trial judge of directing pleas of not guilty, and the judge’s statement to the jury, were made in the presence of the accused; to the extent that he had a right to enter the pleas personally, his silence in the face of the procedure adopted in his presence before the jury should be treated as a waiver of that right.

41. Given the absence of any prejudice to the accused in the procedure in fact adopted, and absent any statutory implication that a different procedure was required to ensure the validity of the trial, there was no miscarriage of justice for the purposes of s 6(1) of the Criminal Appeal Act 1912 (NSW) in the judge taking the step of directing the entry of the plea. Ground 1 must be rejected.

Ground 2

42. As noted above, there were five limbs to ground 2. Ground 2 was carefully and properly drawn in terms which identified each element as giving rise to a miscarriage of justice. These may first be examined separately and then cumulatively. The appellant required leave to pursue this ground.

(i)   the applicant proving unable to conduct his defence as a result of being unrepresented

43. As noted above, the first limb of ground 2 was carefully drafted so as not to indicate, directly or by implication, that the refusal by the trial judge to adjourn the hearing because the accused was unrepresented was challenged. The submissions conceded, correctly, “that this was a consequence of his own decisions to withdraw instructions from previous representatives.” [29] To that it may be added that, as the respective counsel and solicitors made clear in withdrawing on 6 February 2017, and again shortly before the trial commenced, it was the failure of the accused to give written instructions which would permit counsel to run the trial which led to their withdrawal. It was submitted that the trial was unfair because the accused effectively declined to cross-examine police witnesses, or to act in what may have been his own interests.

    29.    Appellant’s written submissions, par 41.

44. It is clear from the exchanges with the judge that the accused was, as the judge surmised, an intelligent man who was well capable of speaking for himself when he deemed it appropriate in his own interest. He made it clear that his defence turned on the proposition that there was a conspiracy between the police and the man known as Ozone. His case appears to have been that the Ozone (a pseudonym or nickname [30] ) was a Nigerian who was due to be deported and, to forestall that event, became a police informant. [31] Ozone, in collusion with police, planted the drugs in the Amagwula residence. The police, on his case, were responsible for planting fingerprints on the plastic bags. He told the jury that he could not call evidence to support that case because he had sought to have an investigation into Ozone “that was ordered in 2015” and was not done.

    30.    Final submissions, Tcpt, 02/11/17, p 8(25).

    31.    Final submissions, p 6(30).

45. The approach the Court should adopt in determining whether the accused was able to run his case requires an assessment, as with claims with incompetence of counsel, by reference to the fairness of the process. [32] In the case of counsel, the court will not assess the correctness of a tactical decision made by counsel which is open to question. [33] In this case, there were two categories of tactical decision made by the appellant himself. The first tactical decision was to refuse to give instructions to counsel to run his case. Counsel had been made available and had returned after once withdrawing. There was no hasty or ill-informed decision; it was clearly a deliberate decision made in the knowledge that, as he had been warned by at least one judge, an adjournment would not necessarily result in bail or parole being granted and, if he refused the assistance of counsel, he would be required to run the case himself.

    32. MacPherson v The Queen (1981) 147 CLR 512 at 523 (Gibbs CJ and Wilson J), 534 (Mason J), 543-544 (Brennan J), 537 (Aickin J agreeing with Mason and Brennan JJ); [1981] HCA 46.

    33. Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [9]-[10] (Gleeson CJ).

46. The second category of decisions involved his choice as to how to run the case. It may be assumed from the absence of counsel and from his own limited cross-examination of police witnesses that he had no independent material to put forward to support his conspiracy theory and alleged concoction of fingerprints by the police. It also appears that he had no evidence that Ozone had in fact planted the drugs. In short, there was no unfair process, but rather a series of calculated decisions by the accused. That circumstance does not give rise to a miscarriage of justice.

(ii)   refusal to arrange for Mr Ozone to attend court to be examined and cross-examined

47. This ground was carefully formulated; it tacitly acknowledged that for a sound forensic reason a subpoena could have been issued to require Mr Ozone’s attendance at the trial. There had been ample opportunity prior to the commencement of the trial for the issue of a subpoena to Mr Ozone, either when the appellant was represented or thereafter.

48. At the beginning of the trial, on 23 October 2017, in the absence of the jury the appellant stated that he had not been targeted by the police in relation to the suspected drug activity. He continued: [34]

“What happened is that I was targeted by Ozone. There is a lawyer in Nigeria – the investigation about him which was discussed in court. There is a lawyer in Nigeria that is willing to conduct that investigation. He is waiting for a court order to do that.”

34.    Tcpt, p 2(46).

49. The following day, after the trial had commenced, but in the absence of the jury, and shortly before the luncheon adjournment, the judge told the appellant that he would ask him at 2 o’clock if he had a list of witnesses that he would wish “even at this stage, for consideration to be given for a late subpoena to be issued.” [35] On returning after the luncheon adjournment, the judge immediately asked if he had such a list. The appellant responded: [36]

    35.    Tcpt, 24/10/17, p 23(40).

    36.    Tcpt, p 23(48).

“The, the list that – of witnesses, I have witnesses that I have in mind to call. Ozone is number 1 on that list and I need a lawyer to be able to talk to and advise me on who to call and why it is necessary, that I can explain to that lawyer.”

The judge remarked that that should have been done eight months earlier and returned to his request for a list of names and addresses: the appellant responded that he had not prepared a list because he did not have a lawyer but that “Ozone would be number 1 on any list of witnesses that I will call.” [37] The following exchange took place:

“HIS HONOUR: I dealt with that issue yesterday. I’m not going to re-agitate it again today. Ozone is not going to be called to give evidence. I’m not persuaded he has any legitimate relevance to this case on what you’ve told me so far. What has he got to do with the drugs in the roof of your house?

ACCUSED: Your Honour, Ozone has everything to do with--

HIS HONOUR: Did he place--

ACCUSED: --what the police are saying.

HIS HONOUR: Are you going to tell this jury that he placed those drugs in the roof of that house?

ACCUSED: Your Honour--

HIS HONOUR: Are you?

ACCUSED: --these are questions that Ozone should be able to answer.”

37.    Tcpt, p 24(18).

50. Following a discussion as to the tender of a police log, the appellant returned to the question of Mr Ozone’s relevance. The prosecutor noted that Mr Ozone had been a witness for the prosecution in the trial with respect to knowing involvement in the January supply offence. A copy of the sentencing judgment in that matter was provided to the judge. Discussion continued after the luncheon adjournment: [38]

“HIS HONOUR: Are the two police officers, whose names you quite improperly mentioned before the jury before lunch, are they the undercover police officers who were involved in the controlled purchased of methylamphetamine in January 2012, which was the subject of a trial before her Honour Judge Norton on 5 September 2014?

ACCUSED: Your Honour they are among the officers that are involved in this matter.

...

Your Honour I know that these officers have roles in this matter because as far as I am concerned, this is one operation against me by Ozone and the police. And what is going on here is that Ozone wants to, or is, using the police and the police wants to, or is, using Ozone.”

38.    Tcpt, 25/10/17, p 51.

51. Submissions for the appellant in this Court stated that he “repeatedly asserted that Mr Ozone would be required for cross-examination in order that he be able to put his [the appellant’s] case to the jury.” [39] It was also submitted that “the appellant was clearly suggesting Mr Ozone, either with or without the collusion of the police, had placed the drugs in the roof cavity [of the appellant’s kitchen].” [40] However, it is far from clear that the appellant did want Mr Ozone called for cross-examination where he (i) had taken no steps to achieve that in the past, (ii) repeatedly referred to the need for the prior investigation in Nigeria, (iii) declined to provide a list of witnesses, including Mr Ozone (merely stating that if he did produce a list Mr Ozone would be on it) and (iv) declined to put essential questions to the police, on the premise that they were involved in a conspiracy with Mr Ozone. The appellant’s submission that “it was incumbent on [the judge] to ensure Mr Ozone was brought to court, if he could be, in order that the appellant be able to examine him in an attempt to provide some factual basis for his ultimate contention” was untenable. The submissions further referred to “the hypothesis that Mr Ozone was responsible for the drugs in the [roof] cavity”, an hypothesis which, it was said, could only properly be put before the jury if Mr Ozone attended. [41]

    39.    Appellant’s written submissions, par 42.

    40.    Appellant’s written submissions, par 65.

    41.    Appellant’s written submissions, par 73.

52. Given the failure of the appellant to cross-examine, both the prosecutor and the judge put basic questions to the police officers, some of whom denied knowledge of Mr Ozone and all denied involvement in planting the drugs in the kitchen roof cavity.

53. As counsel for the Director submitted, (i) the Court had no power to direct an investigation to be carried out in Nigeria, (ii) there was no part of the prosecution case which involved Mr Ozone, (iii) there was no indication as to what evidence might conceivably have been obtained from Mr Ozone if called as a witness and if cross-examined by the appellant, and (iv) even on the appeal, when the appellant was represented by senior counsel, there was no hint as to what evidence could potentially have been given.

54. If the appellant had provided further evidence which he had been unable to call at trial, this Court would have been required to consider whether, taken with the evidence called at trial, there was a significant possibility that a properly instructed jury, acting reasonably, would have acquitted the appellant. [42] Mason and Deane JJ in Gallagher identified the requisite criterion as there being “no significant possibility that the unavailability to the applicant of the new evidence at the time of the trial had resulted in a miscarriage of justice in the relevant sense.” [43] The issue in Gallagher was whether a possibility of a different outcome would suffice, or whether a likelihood was required; the possibility test was recently affirmed in a slightly different statutory context in Van Beelen v The Queen. [44] The point for present purposes is that the allegation of miscarriage does not reach the stage of assessing the possible effect of evidence which had been unavailable at trial. Taken in isolation, there is no basis upon which to uphold ground 2(ii).

(iii)   evidence of fingerprints and photographs taken whilst applicant in police custody for a prior matter

42. Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26.

43.    Gallagher at 403; see also 399 (Gibbs CJ); cf Brennan J at 410 and Dawson J at 421.

44. (2017) 262 CLR 565; [2017] HCA 48 at [75].

55. The complaint with respect to this evidence was that the requirement by the trial judge that the prosecution prove the provenance of the fingerprints used for comparison with the fingerprints on the plastic bags containing drugs led to the jury learning that the appellant had been subject to a police investigation in September 2009, when fingerprints and photographs had been taken. The appellant complained on appeal that these steps were unnecessary, because there had never been a challenge to the finding of his fingerprints on the plastic bags found in the roof cavity of his home.

56. Given the approach of the appellant at the trial, which involved putting the prosecution to proof by his plea of not guilty, but declining to ask questions in cross-examination of most of the witnesses, the trial judge was correct to insist that each relevant aspect of the prosecution case be properly proved. In fact, when the appellant came to address the jury, he made a direct attack on the identification of his fingerprints. [45] In the course of his address, the appellant sought to turn to his advantage the fact that the fingerprints used for comparative purposes had been obtained three years earlier.

    45.    Final Submissions, 02/11/17, pp 7(5)-8(15), 9(1), (33)-(41).

57. In the course of the summing-up, there was little reference to the time at which the fingerprints were taken. What was said occurred in a general direction as to speculation, in the following terms: [46]

“For example, you must not speculate, as you were invited to by Mr Amagwula, as to whether or not he was the subject of fingerprinting in 2012. You must not speculate that, if he were the subject of fingerprinting in 2012, why the person who took the prints is not here.”

46.    Summing-up, 02/11/17, p 5.

58. Appropriate proof of the comparison of fingerprints undertaken at trial was an entirely proper mode of proceeding; there was no basis for any inference that there was a miscarriage of justice because the jury were told that Mr Amagwula had been fingerprinted and photographed by police three years earlier. Although potentially prejudicial, the information was properly led by the prosecutor and no claim of prejudice was raised at trial; if it had been it could have been dealt with by a further direction.

(iv)   content of prosecution address

59. Although the prosecutor had indicated that he did not intend to address, the judge had responded that it was appropriate that he address the jury. There is no complaint about that step in the process. Rather, the complaint is made that the prosecutor then overstepped the mark, making intemperate and inflammatory remarks and belittling observations about the appellant’s case.

60. The address, concededly, was brief. For the most part it was a straightforward, unembellished summary of the factual material. The points of embellishment were as follows: [47]

“So, ladies and gentlemen, when it comes to the issue of possession, the Crown says that there is an overwhelming conclusion, and the only rational conclusion short of going off with the fairies, that the person who possessed this item with those prohibited drugs in there was the accused. …

…

Those questions posed interesting propositions of potential fabrication of evidence, of a conspiracy theory, but the questions are not the evidence. It's the answers that are the evidence in this trial ….

So there is no evidence at all of any fabrication. There is no evidence at all of any diabolical conspiracy. If, as again in a fit of fantasy, you want to look at it, come back to reality and look at Detective Sergeant Laverdure's conclusion in his expert statement. …”

47.    Tcpt, 02/11/17, p 4(10), (30)-(40).

61. The prosecutor then referred to the material found in the red make-up bag, which was said to be worth $260,000-$350,000 and the small amounts of heroin and cocaine found in the bedroom occupied by the appellant, and continued: [48]

“How can that be? Is that just an uncanny coincidence or part of a Mossad-style setup to, as it were, layer the false evidence? How were the fingerprint[s] found on the bags, plural? Again, one is only left to ponder but, when one looks at things in the cold hard light of day ….”

48.    Tcpt, p 5(8).

62. The use of colloquialisms in addressing a jury can be fraught for a prosecutor. However, there was nothing that qualified as intemperate or inflammatory, or belittling of the accused’s case. It was important that the jury be directed as to the difference between unsubstantiated allegations which had been made by the appellant in their presence, and the evidence. There was, as the prosecutor rightly noted, no shred of evidence to support the conspiracy theory proposed by the appellant. This particular must also be dismissed.

(v)   remarks of trial judge towards the appellant and about his closing address

63. The submissions acknowledged that the “truculent attitude” of the appellant “might test the patience of any trial judge.” There was also acknowledgment of the frustration of the judge at having to revisit on several occasions remarks which had been the subject of a ruling in the absence of the jury, but which were repeated by the appellant in the presence of the jury.

64. There is no purpose in setting out the brief passages sought to be relied upon by the appellant in his submissions. There was no substance in the complaints of a miscarriage based upon any observations made by the trial judge to or about the appellant in the presence of the jury. The particular is without substance.

(vi)   cumulative effect

65. There are circumstances in which an accumulation of unfortunate statements or departures from proper procedure, none of which in themselves demonstrate a miscarriage of justice, can, when taken together, properly be so characterised. That was not this case. The complete lack of substance in most of the complaints provided no basis for an accumulation giving rise to a miscarriage.

66. Ground 2 must be rejected.

Orders

67. There was limited substance in ground 2, but in circumstances where there had been a difficult trial, albeit a short one, involving an unrepresented accused, and where there has been a serious attempt by counsel to identify potential breaches of fairness in the trial process, it is appropriate that the Court grant leave to appeal. Accordingly there should be a grant of leave with respect to ground 2. Nevertheless, both grounds must be dismissed; the appeal should be dismissed.

68. BUTTON J:

Introduction

69. This application by Mr Chidi Gozie Amagwula for leave to appeal against conviction is founded on two separate propositions: first, that the irregular way in which his arraignment occurred at the commencement of a trial by jury rendered the subsequent trial a nullity; and secondly, that, whilst unrepresented, he was subjected to a trial so unfair that it constituted a miscarriage of justice.

70. The first proposition in my opinion raises a pure question of law, but the second raises a question of mixed law and fact; for convenience, I shall simply refer consistently to Mr Amagwula as “the appellant”.

71. The appellant stood trial before Judge Colefax SC (the trial judge) and a jury of twelve in the District Court at Parramatta on an indictment containing two counts of supplying a prohibited drug, and two counts of supplying a commercial quantity of a prohibited drug, contrary to ss 25(1) and 29 of the Drug Misuse and Trafficking Act1985 (NSW) (the DMTA).

72. The trial commenced on 23 October 2017, and the appellant was found guilty of all 4 counts on 2 November 2017.

73. The prohibited drugs were located in a make-up case, hidden in the roof cavity (accessed by a manhole) of the appellant’s home during the execution of a search warrant on 4 April 2012. The Crown case proceeded on the basis of the “deeming provision” in s 29 of the DMTA. The offences consisted of the possession for supply of:

Count 1: a commercial quantity (771 grams) of cocaine;

Count 2: a commercial quantity (275 grams) of heroin;

Count 3: an indictable quantity (213 grams) of methylamphetamine; and

Count 4: an indictable quantity (198 grams) of methorphan.

74. It is immediately noteworthy that the trial by jury of the appellant concluded five years and six months after he had been arrested and charged with the offences in question. It is even more remarkable that he had been in custody for all of that time.

75. The appellant was convicted, and sentenced by his Honour on 20 April 2018 to an aggregate sentence of imprisonment of 12 years with a non-parole period of 9 years, to commence on 4 April 2014. No application for leave to appeal against that sentence has been made to this Court.

Procedural background to trial

76. In order to explain my approach to the second ground, it is necessary first to set out in quite some detail all that took place between the arrest of the appellant and the commencement of the trial. Much of the following chronology is derived from material set out at a pre-trial proceeding before Judge Culver on 6 February 2017, the correctness of which was not disputed in this Court.

77. On 4 April 2012, the police executed a search warrant at the home where the appellant resided with his wife and two children.

78. The police seized the drugs that led to the four counts set out at [73] of this judgment (the April supply). A set of scales and cash in various denominations of Australian, US and South African currencies were also seized. Fingerprints of the appellant were said to be on at least the bag containing prohibited drugs in the roof cavity. In other words, the Crown case was straightforward.

79. The appellant was then arrested and charged with five counts of supply. One count related to a separate “actual” supply alleged to have occurred previously on 19 January 2012 (the January supply). The remaining charges were identical to the four counts listed above at [73] of this judgment, except the drug in the fourth charge was spelt as “Methorpan”.

80. On 29 April 2012, the Supreme Court refused the appellant’s bail application.

81. On 12 September 2012, the matter was before the Local Court at Burwood, and all charges were committed for trial. The appellant was represented by a solicitor, Mr Tosevic.

82. On 18 October 2012, the appellant was arraigned in the District Court at Parramatta. He was again represented by Mr Tosevic. The indictment presented contained the five counts described in [79] of this judgment (that is, the drug in the fourth count was spelt as “Methorpan”). The appellant pleaded not guilty to all five counts. Whether those pleas came personally from the appellant, or were entered on his behalf, is not clear on the material before this Court, but I presume that it was the former.

83. The matter was then listed for trial on 18 March 2013 (the first trial listing).

84. On 18 March 2013, Mr Williams of counsel appeared for the appellant, instructed by Mr Tosevic. The parties indicated they were ready to proceed at 2 pm that day.

85. On 19 March 2013, the following day, there were no judges available to hear the matter. The matter was adjourned for one more day to 20 March 2013 for trial before Judge North.

86. On 20 March 2013, Judge North indicated that he had commitments that would require a five day break during the trial. The list judge, Judge Armitage, then vacated the trial date.

87. At the same time, the count relating to the January supply was severed from the remaining four counts, and was listed for trial on 8 October 2013. This trial featured a co-accused, Mr Osuamadi.

88. The trial of the remaining counts relating to the April supply was listed to commence on completion of the trial for the January supply count; that is, some time after mid-October 2013 (the second trial listing).

89. On 10 October 2013, Mr Williams, instructed by Mr Tosevic, appeared again for the appellant. There was a voir dire in the trial of the January supply in relation to the admissibility of evidence from a registered police source, a Mr Ozone. Judge Armitage ruled that the evidence was admissible.

90. On 11 October 2013, the appellant made an application for separate trials with regard to the January supply (that is, the appellant sought a trial separate from the trial of Mr Osaumadi). That application was refused.

91. On 14 October 2013, Mr Williams informed the Court that the appellant had withdrawn his instructions, and no longer wished to have Mr Williams represent him. The matter than returned to the then-list judge, Judge Sides QC.

92. Judge Sides vacated the trial of the January supply. His Honour remarked that it appeared that the appellant had sacked his lawyers to circumvent the refusal of the application for separate trials. His Honour adjourned the matter to 17 October 2013 for mention.

93. On 17 October 2013, Mr Tosevic appeared again for the appellant. The matters were listed for trial on 18 November 2013 (the third trial listing). The first trial – featuring two accused persons and relating to the January supply – had an estimate of seven to ten days. The second trial – with only the appellant as the accused, and relating to the April supply – had an estimate of three to five days.

94. On 18 November 2013, the January trial with the two co-accused proceeded to trial before Judge Craigie SC. However, the jury was discharged on two separate occasions. The registered source, Mr Ozone, gave evidence in these aborted trials.

95. After the second jury discharge, the trial of the January supply was then listed for trial on 1 September 2014 before Judge Sides. Mr Crawford-Fish appeared at that stage as defence counsel, with Mr Tosevic continuing to instruct.

96. On 3 September 2014, that trial commenced before Judge Norton, with the same two legal representatives for the appellant. The jury found the appellant and the co-accused guilty. The matter of the January supply was then listed for sentence on 12 December 2014.

97. On 2 October 2014, Mr Tosevic appeared for the appellant with regard to the April supply. This matter was listed for trial on 25 May 2015, with an estimate of five to seven days (the fourth trial listing).

98. On 12 December 2014, that being the date listed for the proceedings on sentence for the January supply, Mr Crawford-Fish and his instructing solicitor sought leave to withdraw. The January supply was then stood over for sentence on 27 March 2015.

99. For that offence, the appellant was finally sentenced on 1 May 2015 (that is, at least seven months after the jury had returned its verdict of guilty) to a head sentence of 6 years with a non-parole period of 4 years 2 months and 12 days, commencing on 4 April 2012.

100. On 25 May 2015, the April supply came before Judge Sides again. Mr Stitt of counsel, instructed by Ms Dias, appeared for the appellant. Counsel made an application to adjourn the remaining trial, on the bases that counsel had only just been briefed; the trial was complex; the appellant was content to remain in custody notwithstanding the inevitable delay; the defence opposed the Crown’s foreshadowed tendency evidence; there was a need to investigate the involvement of the registered source in “the Biafran Alliance”; and lastly, there had been an appeal lodged to the Court of Criminal Appeal in relation to the conviction for the January supply.

101. Judge Sides granted the application and adjourned the matter for trial on 4 April 2016 (the fifth trial listing).

102. On 4 April 2016, the matter came before the trial judge, Judge Colefax. Mr Stitt (instructed by Ms Dias) appeared for the appellant again. The appellant made an application to vacate the trial, on the basis that the Crown would no longer rely on tendency evidence (from the January supply), and the defence could not as a result now meet the Crown’s case. His Honour rejected the application, and the matter was referred to Judge Marien SC for trial on 5 April 2016. Defence counsel then made further applications to adjourn the matter and for a permanent stay, both of which were refused by the trial judge.

103. On 6 April 2016, Judge Marien granted the defence team leave to withdraw from the matter due to ethical difficulties. The matter returned to Judge Colefax, and his Honour adjourned the matter to 6 February 2017 for trial (the sixth trial listing).

104. On 5 December 2016, both parties indicated that the matter was ready to proceed. Although it is not entirely clear whether the appellant was represented on that day, on balance it appears from subsequent events that he was.

105. On 6 February 2017, the matter came before Judge Culver. The appellant appeared unrepresented. Earlier that morning, leave had been granted to his then-solicitor (Ms Hempel) and counsel (Mr Buckman) to withdraw, on the basis that the appellant had refused to sign instructions.

106. The Crown prosecutor indicated to the Court that the matter was ready to proceed from his perspective. He also told the Court that the legal team of the appellant had indicated to him before they withdrew that the defence case would be an “explanation case”. However, the Crown prosecutor explained that he was not sure whether the appellant would be disputing the presence of his fingerprints on the bag found in the roof cavity of his home, or that he would be asserting that he was “set up by a political opponent” from his country of origin, Nigeria.

107. The Crown prosecutor presented an indictment for the four counts relating to the April supply. The indictment was dated 2 February 2017. The appellant was then arraigned on that indictment before Judge Culver. At that stage, the drug recorded in the fourth count on the indictment remained typed as “Methorpan” (in fact, the drug that appears in schedule 1 of the DMTA is “Methorphan”). The appellant personally pleaded “Not guilty” to each of the four counts.

108. The appellant sought an adjournment of the trial on the basis that he should be legally represented at trial, and that he was not aware of the details of the Crown’s evidence against him. Her Honour noted that the appellant was sufficiently familiar with his matter and had been represented by various counsel in the past. Her Honour further remarked that the appellant was able to represent himself. The application was refused, and her Honour ruled that the trial would proceed the next day if there was a judge available to hear the matter.

109. On 7 February 2017, the matter came before Judge Sides. There was no trial judge available until the next day, and the matter was listed for trial accordingly. The appellant indicated to the court that he was not in a position to defend himself whilst in gaol and that “[f]or this trial to go ahead, there are witnesses that would need to be subpoenaed and … what they’ve got to say is very important in this matter …” (AB 793). His Honour advised the appellant to provide to the Court the following day a list of witnesses to be subpoenaed.

110. On 8 February 2017, due to unavailability of judges, Judge Sides again stood the matter over for trial to the following day. The appellant did not produce a list of witnesses. He indicated again that he would not be able to “run the trial” by himself whilst incarcerated.

111. On 9 February 2017, Acting Judge Armitage gave the appellant “one last opportunity” to resolve his differences with Legal Aid, specifically with Mr Buckman and Ms Hempel, who (as I have said) had withdrawn from the matter earlier that week. Failing that, his Honour indicated that the trial would proceed with the appellant unrepresented. The matter was then adjourned to Monday 13 February 2017, in order to allow the appellant to make contact with Legal Aid.

112. On 13 February 2017, Mr Buckman and Ms Hempel appeared before Acting Judge Armitage. After a conference with the appellant, Mr Buckman confirmed to the Court that a resolution could not be reached, and that he could not appear for the appellant. Acting Judge Armitage granted counsel and solicitor leave to withdraw again.

76. Subsequently, the appellant made an application for an adjournment for various reasons. One of the reasons provided was that an adjournment would allow him to subpoena witnesses, “surveillance evidence”, “phone records”, and “meeting documents”.

77. However, when asked about the evidence the witnesses would give, the appellant replied:

“ACCUSED: That is why I have difficulty because I know that the evidence would go to this matter in terms of helping to prove my - my innocence-

HIS HONOUR: How?

ACCUSED: However, to be able to specifically say it without going into where it goes to my defence, I don't know how to guide myself while doing that, your Honour.”

115. In similar terms, the appellant explained shortly after that “I don’t know what the witness would say… But I need that witness to come and say what he knows or what role he played in all of this” (AB 842).

116. Thereafter, the appellant agreed with his Honour’s summary of the defence case: that the appellant “was not responsible for the placement of the drugs in the roof and that he knew nothing about them” (AB 843).

117. Subsequently, orders were made to vacate the trial date and to have the matter stood over to 16 February 2017 to be allocated yet another trial date.

118. On 16 February 2017, Judge Sides refused to hear an application for bail by the appellant. His Honour listed the matter for trial on 16 October 2017 (the seventh trial listing). The matter was also listed for mention on 16 March 2017.

119. On 16 March 2017, the appellant appeared unrepresented. Judge Sides made orders in relation to a timetable for case management as proposed by the Crown. The matter was adjourned to 6 April 2017.

120. On 6 April 2017, the appellant appeared unrepresented again. He informed the Court that he had been in contact with Legal Aid and was waiting to be assigned a lawyer. Judge Sides stood the matter over to 20 April 2017.

121. On 20 April 2017, the matter was adjourned to 25 May 2017 in order to allow the appellant to respond to paperwork from Legal Aid.

122. On 25 May 2017, Mr Reetov, appearing merely as a friend of the Court, confirmed that the appellant had a grant of legal aid, on the proviso that he co-operate with his assigned lawyer, Ms Hempel. The appellant indicated that he did not wish to instruct Ms Hempel.

123. On 16 October 2017, the matter came before Judge Bennett SC. The appellant was still unrepresented. The appellant sought to have the trial date vacated, and to be granted bail to allow him to prepare his defence. Both applications were refused. As there was no available judge, his Honour stood the matter over to the following day, and indicated that that the matter would then proceed to trial.

124. On 17 October 2017, the appellant appeared unrepresented. He sought to adjourn the matter again to obtain legal advice and prepare his defence. Judge Bennett refused the application for an adjournment, indicating that the matter would proceed to trial the following Monday. Judge Bennett adjourned the matter to 19 October 2017 to ensure that any further material from the Crown could be handed to the appellant.

125. On Monday 23 October 2017, the matter was listed to proceed to trial before the trial judge, Judge Colefax. The appellant was still unrepresented. He immediately proceeded to make an adjournment application on the basis that “the registered source … matters for [the appellant’s] defence” and that the involvement of the registered source had not yet been investigated. The relevant extract is as follows:

“ACCUSED: Yeah, your Honour, I have an application to make. I was told last week to make that application to you this morning.

HIS HONOUR: No, I've spoken to the list judge. There will be no application heard. Come to the bar table. If you don't come to the bar table the officers will assist you. Officers, bring that man to the bar table, please. Now take a seat, the first seat behind the lectern, thank you, sir. Mr Amagwula, I have spoken at length with the list judge this morning. I know exactly what has happened in this Court in the last two weeks.

I have reviewed the files. I have a very good working knowledge of what has happened in this Court over the last seven (as said) years. The trial will proceed this morning with the empanelment of a jury after I say something to you. Please take a seat. Please sit down.

ACCUSED: Your Honour, can I please say something?

HIS HONOUR: You have five minutes.

ACCUSED: Thank you, your Honour. Your Honour, one reason that I cannot run the trial is because I am not a lawyer and the other reasons is that the involvement of the registered source in this matter was supposed to be investigated. That investigation has not been done. Without that investigation being done, I cannot get a fair trial in this matter.

HIS HONOUR: Did you raise that with the list judge last week?

ACCUSED: I did and the list judge told me that I can take that application to you this morning and that is what I would like to do, your Honour.

HIS HONOUR: That's not what the list judge told me.

ACCUSED: I, I, I have more to say. The reason is that in this whole operation I was not the target of the police operation in this matter. The Crown said that to the Court, that I was not the target of the police operation. The other things is the registered source, who he is or who he is not, matters for my defence in this matter. His role in this matter also matters for my defence. If that investigation is not done, I, I cannot be able to defend myself in this matter.

HIS HONOUR: You were arrested in 2012.

ACCUSED: Yes, your Honour.

HIS HONOUR: This matter has been lurking in the courts for five years. It would be an affront to the administration of justice if this trial did not proceed today. You have had plenty of opportunity of retaining lawyers. You have had lawyers. You have rejected lawyers offered to you by the Legal Aid Commission. This trial is proceeding this morning. The application for an adjournment is refused.

ACCUSED: Your Honour, as I said--

HIS HONOUR: No, your application--

ACCUSED: --I am not the target of the police operation, your Honour.

HIS HONOUR: It doesn't matter, Mr Amagwula. Plenty of times in operations people other than those initially suspected of criminal activity are caught up in the net.

ACCUSED: And that is not what happened in this matter.

HIS HONOUR: It doesn't--

ACCUSED: What happened is that I was targeted by Ozone. There is a lawyer in Nigeria - the investigation about him which was discussed in court. There is a lawyer in Nigeria that is willing to conduct that investigation. He is waiting for a court order to do that.

HIS HONOUR: Mr Amagwula, I have already ruled that your application for an adjournment is refused. I will hear no further argument on that subject. We are now going to proceed to the trial.

ACCUSED: I cannot get a fair trial, your Honour. Another complaints that I want to make is that last week a document was passed to be shown to his Honour and if I had a lawyer that document would have been shown to my lawyer before being passed to his Honour. That did not happen because I don't have a lawyer.

HIS HONOUR: Yes, that's your--

ACCUSED: I am not a lawyer.

HIS HONOUR: That's your fault.

ACCUSED: I have never done this, I have never done this before.

HIS HONOUR: Yes, I--

ACCUSED: I cannot get a fair trial under the circumstances.

HIS HONOUR: Yes, thank you.

ACCUSED: The next thing that I wish to add is that the response that is supposed to be made has not been made and the reason that that response has not been made is because I haven't had a lawyer since February, and because I haven't had a lawyer that's why that response has not been made.

HIS HONOUR: Yes.

ACCUSED: Your Honour, I am asking you to please reconsider. I cannot get a fair trial in this matter. The reason that I was, it, it is being said that I did not sign instruction. What the Court has not been told is that that investigation of the registered source's involvement has not been done and that investigation needs to be done in order for me to be able to defend myself properly in this matter, your Honour. I am innocent in this matter. All I need is a chance in fairness to defend myself properly. I have not been given that chance, not at any point in this matter. I have been in prison for more than five years and six months. I would like to leave prison today, your Honour. The reason I am here is because I want to get to the point where I can be able to defend myself in a proper way. That has not happened at any point, isn't likely to happen if this trial proceeds. I am asking you, your Honour, please give me the chance in fairness and justice.

HIS HONOUR: Thank you, Mr Amagwula, please take a seat. Please take a seat.” (tcpt, 23 October 2017, p 1(32)-1(47)) (All bolding in transcript extracts is emphasis added by me)

126. Judge Colefax refused the application on the basis that the appellant did not raise any new circumstances since the last refusal on 17 October 2017 by Judge Bennett of the appellant’s adjournment application.

127. The Crown prosecutor then presented an indictment; to be clear, no jury panel was present in the courtroom. The Crown prosecutor indicated that that indictment was slightly different from the indictment the appellant was arraigned on in February of that year. The Crown prosecutor explained that the prohibited drug particularised in count 4 had been changed from “Methorpan” to “Methorphan” (that is, in conformity with the DMTA). The relevant exchange was as follows:

“Mr Crown, do you have an indictment to present?

CROWN PROSECUTOR: I do. It's slightly different to the indictment that was presented on 2 February. This one is dated 7 February 2017. The difference is in relation to count 4. The prohibited drug is, "Methorphan", not "Methorthan" [sic; “Methorpan”]. That has been amended. That's the only difference.

HIS HONOUR: Thank you. Has a copy of this indictment been given previously to Mr Amagwula?

CROWN PROSECUTOR: It has but we shall give him another copy.

HIS HONOUR: Have you got a working copy for me, Mr Crown?

CROWN PROSECUTOR: Yes, I should give you this document and ask for it back before the jury is empanelled so I can present it in court.

HIS HONOUR: Yes, of course.

CROWN PROSECUTOR: I'm just making sure that this working copy has been amended. It has not. Sorry, your Honour, the original indictment and a working copy.

HIS HONOUR: Thank you.

…

HIS HONOUR: Thank you. Just pardon me while I read the indictment. Could I just ask you to initial the change to count 4, please, Mr Crown?

CROWN PROSECUTOR: I think I might have to get Mr Everson to do that, having regard to my status.

HIS HONOUR: Can your instructor do it? I think your instructor may have the authority to do it. I'll arraign him on that indictment, then I want to say something to him. Then we'll take a brief adjournment whilst the jury panel is brought up--

CROWN PROSECUTOR: Yes.

HIS HONOUR: --and during that adjournment I will have that indictment handed back to you so that whoever needs to initial the amendment can do so.” (tcpt, 23 October 2017, p 4(48)-5(12))

128. The appellant was then arraigned before his Honour on that indictment. His Honour directed that pleas of not guilty be entered in relation to each count, on the asserted basis that the appellant was not legally represented. In other words, those pleas did not come from the mouth of the appellant. The relevant extract from the transcript is as follows:

“HIS HONOUR: ... Mr Amagwula, I'm going to ask my associate to arraign you on this indictment. Because you're not legally represented I won't ask you personally to enter a plea. I will direct that pleas of not guilty be entered in relation to each of them after you are arraigned. … Yes, Madam Associate, please arraign the accused.

CHARGE 1   For that he on 4 April 2012 at Riverwood in the State of New South Wales did supply a prohibited drug, namely, cocaine, in an amount of 771.4 grams, which amount is not less than the commercial quantity applicable to the prohibited drug

HIS HONOUR: I direct that a plea of not guilty be entered in relation to that count.

CHARGE 2   Further that he on 4 April 2012 at Riverwood in the State of New South Wales did supply a prohibited drug, namely, heroin, in an amount of 275.33 grams, which amount is not less than the commercial quantity applicable to the prohibited drug

HIS HONOUR: I direct that a plea of not guilty be entered to that count.

CHARGE 3   Further that he on 4 April 2012 at Riverwood in the State of New South Wales did supply a prohibited drug, namely, methylamphetamine, in an amount of 213.9 grams

HIS HONOUR: I direct that a plea of not guilty be entered to that count.

CHARGE 4   Further that he on 4 April 2012 at Riverwood in the State of New South Wales did supply a prohibited drug, namely, methorphan in an amount of 198.5 grams

HIS HONOUR: I direct that a plea of not guilty be entered in relation to that count.” (tcpt, 23 October 2017, p (5)17-(6)(9))

129. Shortly thereafter, the appellant referred to the “registered source” again:

“ACCUSED: Your Honour, please, I'm, I plead with you once again. There is information--

HIS HONOUR: No, if this is--

ACCUSED: --that--

HIS HONOUR: No, I'm sorry.

ACCUSED: --has not been made available to the Court--

HIS HONOUR: If this is--

ACCUSED: --in relation to the--

HIS HONOUR: It this is another--

ACCUSED: --registered source.

HIS HONOUR: Please don't talk over the top of me. If this is another application to adjourn this trial in relation to proceedings that relate to 2012 and which have been before the Court on very numerous occasions, including last week before the list judge and, indeed, before me at 10 o'clock this morning, the application is refused. I will not hear or entertain any further applications for an adjournment of the trial. There will be a brief adjournment whilst the jury panel is brought up. Thank you.” (tcpt, 23 October 2017, p (9)5-(9)(30))

Aspects of the trial itself

130. The jury panel was then brought into Court. The appellant was arraigned in their presence, and a jury of 12 was empanelled. Again, however, pleas of not guilty were not entered by the appellant personally; rather, his Honour directed that pleas of not guilty be entered in relation to each count. The transcript is as follows:

“HIS HONOUR: Thank you, Mr Crown. Yes, Mr Amagwula, will you please stand while my associate arraigns you?

CHARGE 1   For that he on 4 April 2012 at Riverwood in the State of New South Wales did supply a prohibited drug, namely, cocaine, in an amount of 771.4 grams, which amount is not less than the commercial quantity applicable to the prohibited drug

HIS HONOUR: I direct that a plea of not guilty be entered.

CHARGE 2   Further that he on 4 April 2012 at Riverwood in the State of New South Wales did supply a prohibited drug, namely, heroin, in an amount of 275.33 grams, which amount is not less than the commercial quantity applicable to the prohibited drug

HIS HONOUR: I direct that a plea of not guilty be entered.

CHARGE 3   Further that he on 4 April 2012 at Riverwood in the State of New South Wales did supply a prohibited drug, namely, methylamphetamine, in an amount of 213.9 grams

HIS HONOUR: I direct that a plea of not guilty be entered.

CHARGE 4   Further that he on 4 April 2012 at Riverwood in the State of New South Wales did supply a prohibited drug, namely, methorphan in an amount of 198.5 grams

HIS HONOUR: I direct that a plea of not guilty be entered.

HIS HONOUR: Please take a seat, sir. Members of the jury panel, the trial which has just commenced by the reading of those counts on the indictment, you would have heard that I directed that pleas of not guilty be entered. I made that direction because the accused in this case, Mr Amagwula, is not legally represented. Normally where a lawyer was appearing for an accused person, after that person had received legal advice from such a representative, the person would have the opportunity of entering the plea of guilty or not guilty, but we have a practice in our courts where a person is not legally represented and where the proceedings have got to this stage that the trial judge direct that pleas of not guilty be entered on behalf of the accused person.” (tcpt, 23 October 2017, p 9(41)-10(32))

131. In the absence of the jury, after its empanelment, the trial judge then explained to the appellant the usual procedures of the trial, including the opportunity for the appellant to call witnesses, and that the appellant had a choice with regard to giving evidence himself. His Honour said:

“But assuming that there is a case to answer and assuming I don't give a Prasad direction, you then, sir, have an opportunity of calling your evidence in your own case. You may, but you do not have to, go into the witness box to give evidence yourself. If you do not go into the witness box I will tell the jury that you have a right of silence and that they are not to hold it against you if you do not go into the witness box, and I will tell them if they were to hold it against you it would be to destroy the right of silence. You will, therefore, have to consider at some point during the trial whether you will wish to give evidence or not.

You also have the opportunity of calling witnesses. If you decide not to give evidence that doesn't prevent you from calling other witnesses. So if you want to have witnesses called you have the opportunity to do that after the Crown's case is complete, and if you do call witnesses you must ask them questions so that they can answer the questions and the answers become the evidence.” (tcpt, 23 October 2017, p 16(34)-16(48))

132. The appellant then effectively sought an adjournment in order to issue subpoenas, which the trial judge refused:

“ACCUSED: Your Honour, what I want to say is this. Like everything you have been saying up to a point I can't follow any more. If this trial goes ahead I cannot be able to run it. I do not want a situation where the jury comes in and I am sitting and not doing anything and I don't know what that is going to be like. The, the, the, the subpoenas that need to be issued, the witnesses that I want to call, they are not, that, those subpoenas have not been issued so they have not been called. The other witnesses that can be called I cannot call them because I'm in a situation where I cannot be able to call them.

HIS HONOUR: Why haven't the subpoenas been issued at this stage--

ACCUSED: Because--

HIS HONOUR: --when this trial has been fixed for at least a year?

ACCUSED: Yes, yeah, I'm coming, your Honour, because I do not have a lawyer. Also there are other court applications that need to be made for my defence. They have not been made. This person, Ozone, he made four statements in this matter. Of those four statements, two are the ones that I have, but those two that I do have, have different, have different signatures on them.

HIS HONOUR: What is the name of that witness, Mr Amagwula?

ACCUSED: Ozone.

HIS HONOUR: Can you spell that for me?

ACCUSED: Ozone-Z - Ozone-Z-Ozone-N-E.

HIS HONOUR: Yes.

ACCUSED: So those two statements of his that I have have different signatures on them.

HIS HONOUR: Just excuse me for one moment. Do you know this witness, Mr Crown?

CROWN PROSECUTOR: Originally the indictment contained a count of drug supply 19 January 2012 and then these four counts arising from 4 April. They were severed years ago. The trial of 19 January 2012 concerned as a witness a registered source by the name of Mr Ozone, quite true. That trial has been run and this accused has been convicted and sentenced in relation to that trial. He has no appeal to the Court of Criminal Appeal.

HIS HONOUR: Is Mr Ozone to be a witness in this trial?

CROWN PROSECUTOR: Mr Ozone has nothing to do with this trial. This trial revolves around a search warrant that was issued by a court and police attending and making a search and finding the things they say they found. Mr Ozone will not be referred to in the Crown case. He is irrelevant.

HIS HONOUR: Thank you. The next point, Mr Amagwula?

ACCUSED: Okay. Your Honour, this is really difficult for me. This Ozone--

363. Having said that, the Crown prosecutor did not wish to be heard against the proposition, with regard to the mode of proof ultimately adopted, that “the cure was worse than the asserted disease”.

364. It was said, however, that the direction given by his Honour about the whole topic was sufficient, and that one is entitled to infer that, except in unusual circumstances, juries follow the directions of trial judges to the effect that they should not impermissibly reason in a prejudicial way.

The closing address of the Crown prosecutor

368. The Crown conceded that expressions such as “Mossad-style” and “going off with the fairies” were “unnecessary”.

369. The Crown noted that the appellant had alleged in his final address that Mr Ozone, and Detectives Vanderhelm and Ferfiris were “behind all of this” and that the Crown was withholding phone records. In these circumstances, it was appropriate for the Crown prosecutor to invite the jury to reject the proposition of a “conspiracy” between Mr Ozone, the police officers, and potentially the Crown prosecutor himself.

370. Further, in light of the lack of evidence of a “conspiracy”, the jury would have found the defence case inherently difficult to accept, rather than being affected by any inappropriate descriptors used by the Crown prosecutor.

371. In oral submissions, it was accepted again that the closing address of the Crown prosecutor included “some unnecessary flourish”. It was also accepted that the reference by the Crown prosecutor to some of what the appellant had said as having been “off with the fairies” had a flavour of denigration of an unrepresented accused person.

372. To be weighed against that, it was submitted, was that the trial judge had appropriately directed the jury to consider the submission of the appellant that there had been a conspiracy against him, and that he had been framed. In fact, it was said, that direction in the summing-up was a generous one, in that, in truth, there was no evidence whatsoever – including from the appellant –upon which those submissions could or should have been based.

The remarks of the trial judge throughout the trial and in the directions to the jury

373. The Crown submitted that, all things considered, the trial judge had conducted the trial in a fair manner, and took appropriate control of the proceedings so as to ensure fairness to the appellant.

374. The Crown referred to many examples: the explanation by the trial judge about how the Crown case would proceed; the advice his Honour gave to the appellant about the giving or calling of evidence and about cross-examination (including detailed assistance about the cross-examination of the appellant’s wife); the advice to give consideration as to whether he wanted to give evidence himself; the exclusion of the search warrant document; the ruling that the appellant’s wife should be called, as she could potentially give exculpatory evidence; at the appellant’s request, the adducing of this exculpatory evidence by the trial judge; and the assistance afforded by the trial judge to obtain a customs document from Western Australia showing that the appellant had brought a large sum of foreign currency into the country.

375. The Crown further contended that whilst there were a number of “stern exchanges” between the trial judge and the appellant, the trial judge was nonetheless correct to say that he would not revisit matters that had already been ruled upon, and that the appellant had had earlier opportunities to prepare his case.

376. It was argued that the warning by the trial judge before the appellant delivered his final address was not a “trap” (as described by senior counsel for the appellant).

377. It was said that the appellant demonstrated an understanding of the proceedings and the allegations against him, as evidenced by the coherence of the applications he made and of his final address. It was submitted that the appellant had been quite capable of understanding the difference between evidence and submissions.

378. It was submitted that the direction to the jury to disregard any submissions of the appellant that had no evidentiary foundation was unimpeachable.

379. The Crown also submitted that the summing-up gave examples of matters that were based in evidence, and others that were not. For example, his Honour told the jury that they should not “sweep aside” the assertion by the appellant that the police officers had lied. The Crown submitted that this was very fair to the appellant, as in truth there was no evidence in the case to found a conspiracy theory.

380. In oral submissions, with regard to the criticisms made by the trial judge of the appellant purporting to give evidence in his final address from the Bar table, it was submitted that they were entirely orthodox.

381. The concluding point made about this ground in oral submissions was that one can readily infer from the whole of the transcript of this matter that the appellant is an intelligent person, and was sufficiently capable of conducting this litigation on his own behalf.

Determination of Ground 2

382. Turning to my determination of this ground, the following preliminary points can be made.

383. First, senior counsel for the appellant neither placed evidence before this Court to the effect that, nor otherwise suggested that, the appellant may have been unfit to stand trial at the time it took place. Such evidence, in my opinion, may have put a very different complexion on this matter. I infer from that course that the approach of the appellant to his trial, and his conduct during it, was the result of wilfulness, recalcitrance, and other characteristics of his personality rather than intellectual disability, or any psychological or psychiatric condition, or any other personal disadvantage beyond his control.

384. Secondly, it is important that no evidence was placed before this Court as to precisely what Mr Ozone might have been expected to say if he had been called as a witness at the trial. To expand on that: there was neither a proof of evidence from Mr Ozone himself, nor an affidavit from the appellant as to what he would expect Mr Ozone to say, nor evidence from any other source shedding light on the question. It remains a matter of this Court divining from the whole of the transcript what the appellant believed Mr Ozone would say in his favour, just as it was for the trial judge.

385. Thirdly, in that regard, respectfully contrary to the submission of senior counsel, I do not believe that the appellant was trying to say that, if compelled to give evidence, Mr Ozone would directly or indirectly take responsibility for the prohibited drugs located in the roof cavity. Rather, reading the transcript as a whole, I believe that the appellant was seeking to say that Mr Ozone played a role in the process whereby the police – allegedly wrongfully – obtained the search warrant that was executed at his home. I say that not only because, as my extensive extracts have shown, the appellant never directly claimed that Mr Ozone had placed the drugs in his home. I say it also because I believe that the import of his statements was that Mr Ozone had dishonestly or unfairly or illegally inculpated him, and it was that that led to the issuance and execution of the search warrant.

386. Fourthly, the inability of the appellant to formulate the basis upon which he wished to have Mr Ozone present – for example, perhaps to establish on the voir dire that, pursuant to s 138 of the Evidence Act 1995 (NSW), the fruits of the execution of the search warrant should be excluded as unlawfully or improperly obtained – was an inevitable consequence of his unwillingness or inability to work with the many sets of lawyers with whom he had been provided over many years.

387. Fifthly, to the extent that the appellant seemed to have been trying to “go behind” a search warrant on the basis that it had been issued on the basis of evidence that was false or wrong, he was not, as a matter of law, able to mount that argument: see, for a recent analysis of the question by this Court, Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109, in which cases were referred to that confirm the principle with regard to warrants issued pursuant to both Commonwealth and State legislation with regard to both Commonwealth and State offences: see, for example, Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28. And in a large sense, the application of that legal principle to my evaluation of the transcript that that was indeed what the appellant was seeking to do through Mr Ozone destroys much, if not all, of the force of the argument in this Court based on his absence from the trial.

388. Sixthly, the Crown prosecutor made it clear that he would not call Mr Ozone because, in his opinion, he was completely irrelevant to the trial. In my opinion, nothing has been placed before us to impugn that decision.

389. Separately, it is true that, in extraordinary circumstances, the trial judge can call a witness: see R v Apostilides [1984] HCA 38; (1984) 154 CLR 563. But it was not suggested to us that that should have happened here.

390. The objective reality is therefore that, if the trial judge had issued a subpoena for the attendance of Mr Ozone, and if he had been able to be located and brought to court, he would have needed to have been called by the appellant. At the start of that process, at the least, the appellant as calling party would have been required to ask Mr Ozone non-leading questions. And as I have said, even now there is no direct or indirect evidence as to what Mr Ozone would actually have said; at the least, one might expect him to deny wrongdoing on his own part. It is not easy, in short, to see how the failure of that process to take place constitutes a miscarriage of justice, not least because it is not easy to infer that the calling of the witness in that way would have benefitted the appellant.

391. Seventhly, as part of the orthodox process of explaining to an unrepresented accused the various choices that he or she may make throughout a criminal trial, the trial judge made the appellant aware that he could, if he wished, give evidence on oath or affirmation. He chose not to do so. Almost inevitably, that meant that the final address of the appellant was deprecated by the trial judge as containing much that the jury should disregard, on the basis that it was simply not founded in the evidence. That deprecation was unexceptionable.

392. To be weighed against all of the foregoing factors that, in my opinion, argue against the success of the ground, it may be accepted that the trial had some very unsatisfactory features; the experienced Crown prosecutor who appeared before this Court did not seek to persuade us to the contrary.

393. For example, as she accepted, the “cure” with regard to the question of the fingerprints was surely worse than the “disease” that troubled the trial judge. By that I mean, the concern of his Honour about the provenance of the fingerprints found on the crucial items being strictly proven should surely have been seen, with respect, to have been outweighed by the danger of the jury using prejudicially the fact that the fingerprints of the appellant had been taken by the police years beforehand.

394. For another example, some of the comments made by the trial judge in the presence of the jury would inevitably have led the jury to have an adverse view of the appellant.

395. For another example, although the appellant seemingly agreed more than once to the procedure whereby the trial judge asked open-ended questions of the prosecution witnesses, thereby in a sense setting out the case for the appellant, even so their inevitable denials of any serious wrongdoing rendered the exercise very largely futile, and indeed disadvantageous to the appellant.

396. For yet another example, although some of the submissions made by the Crown prosecutor in his final address to the jury were apposite in light of the state of the evidence, some of them went beyond the bounds of the role of a minister of justice, in that they belittled what there was of the case for the appellant, and should not have been made.

397. Seeking to make an evaluative judgment of all of those factors has a miscarriage of justice been established to have occurred here? The question is finely balanced, I confess. But after reflection, I consider that the responsibility for the undoubtedly defective features of this trial must be laid, very largely, at the feet of the appellant, as follows.

398. To repeat: the trial was being conducted 5 ½ years after the events upon which it was based. That literally scandalous state of affairs was the result of the approach of the appellant, not the criminal justice system as a whole, nor the trial judge nor the Crown prosecutor in particular.

399. The fact that the appellant was unrepresented was also, one can infer, the result of his approach to the litigation. Many if not all of the failings in the trial were a function of the simple fact that he was unrepresented. That is not a matter of ‘blaming” the appellant for the fact that he appeared for himself at the trial; it is simply a matter of ascribing, to a large degree, causation for how things developed at that trial.

400. A third aspect of the trial that can be said to have been caused by the approach of the appellant is the fact that he was repeatedly criticised by the trial judge because he insisted on revisiting submissions that had been rejected, and often did so in the presence of the jury. Furthermore, some of his contentions were preposterous: for example, the proposition that the charges would be simply dropped, or that the trial should be adjourned so that he could seek legal representation, in light of the demonstrated futility of that course.

401. In short, in assessing in this Court whether a defective trial was so defective as to constitute a miscarriage of justice, I consider that the fact that the cause of many of its defects was the conduct of the appellant is not irrelevant.

402. Separately, despite my concerns about the adduction in evidence of the fact that the fingerprints of the appellant had been taken years beforehand, I think that the general proposition that juries are expected to follow directions against prejudicial lines of reasoning has application here.

403. More generally, it is easy perhaps to criticise a trial judge who is attempting to deal with the challenges presented by the conduct and approach of an accused person as here, in the context of the wholly unacceptable delays that he had already created before the trial commenced. But due allowance needs to be made, I think, for the practical forensic problems with which the trial judge was confronted; with the benefit of hindsight, a judge sitting in this Court can easily identify ways that he or she might have been able to deal with things better. And in assessing whether this trial as a whole constitutes a miscarriage of justice, I think that due allowance must be made, not as it were for judicial exasperation, but rather for the simple challenge of finding a way to bring the criminal proceedings against the appellant to a conclusion by way of verdicts, in light of his entrenched approach to them.

404. Reflecting on the combined effect of all of the matters relied upon by senior counsel for the appellant – none of which lacks some validity – I cannot accept that this trial constitutes a miscarriage of justice, with the inevitable consequence that this Court would order a new trial. I believe that its failings were very largely of the appellant’s own making. And, as I have said, in light of the absence of any evidence that any factor rendered him unfit to stand trial, I cannot accept the proposition that the whole of the proceedings are now to be set at naught, more than seven years after the prohibited items bearing the fingerprints of the appellant were found in the roof cavity of his home.

405. In short, I would not uphold ground two.

Contingent role of the proviso with regard to Ground 2?

406. Finally, I indicate contingently that, if I be wrong in refusing to characterise these proceedings as a miscarriage of justice, I would not dismiss ground 2 on the basis of the “proviso” to be found in s 6 of the Criminal Appeal Act 1912 (NSW). That is because, despite the seeming simplicity and strength of the Crown case that the appellant did indeed possess the prohibited drugs for supply, it is the failings in the process of the trial that found the ground of appeal that themselves make assessment of whether a substantial miscarriage of justice has actually occurred impossible in the circumstances of this case.

Proposed orders

407. Because I would not uphold either ground of appeal against conviction, I propose the following orders:

1. Leave to appeal to argue ground 2 granted.

2. Appeal dismissed.

408. LONERGAN J:

409. I have had the advantage of reading the draft judgments of Basten JA and Button J. The factual and procedural background, circumstances of the arraignment and relevant exchanges between the then unrepresented applicant and the Bench have been set out at relevant length in those judgments and there is no need for me to repeat them.

410. I agree with both Basten JA and Button J that ground 1 of the appeal – that the applicant was not properly arraigned and thus the trial was a nullity - should be rejected. I specifically agree with and adopt Basten JA’s conclusions in [40] and [41] on that issue.

411. In respect of ground 2, the miscarriage of justice ground, I have carefully and independently considered the transcript of the hearing and the five particular complaints made by the applicant. I have considered each complaint and its effect separately as well as together to assess their cumulative effect on the question of whether there was a miscarriage of justice arising from events occurring in the course of the trial.

412. I have reached the independent view that there was no miscarriage of justice.

413. I adopt and agree with Basten JA’s analysis of each of these complaints in [42] to [66].

414. I agree that each of the complaints is without substance, and ground 2 must be dismissed.

415. I agree with Basten JA for the reasons he states in [67] that there should be a grant of leave with respect to ground 2 but that as both grounds must be dismissed, the appeal should be dismissed.

*****************

Endnotes

Amendments

08 August 2019 - Cover page: Texts Cited: Change “Howie and Johnson, Criminal Practice & Procedure NSW” to “LexisNexis Butterworths, Criminal Practice & Procedure NSW”

“Sir” added to James Fitzjames Stephen

“Sir” added to Stephen Mitchell and “QC”

Decision

[78] line 1: “[2]” is deleted and “[73]” inserted

[79] line 2: “paragraph 2” is deleted and “[73]” inserted

[82] line 2: “[73]” is deleted and “[79]” inserted

[87] last line: the name “Osaumadi” is replaced with “Osuamadi”

[107] penultimate line: “not” is replaced with “Not”

[136] line 2: “permitted” is replaced with “permitting”

[144] last line: add full stop at end of paragraph

[163] line 2: inserted “the” before “2012”

[174] last line: deleted “(tcpt 202(1)-203(6))” and replaced with “(tcpt, 30 October 2017, 202(1)-203(6))”

[185] line 3: insert “the” before “fingerprint”

[191] line 1: delete “to”

[239] line 1: after “England” insert “and Wales”

[240] line 1: change “Howie and Johnson in Criminal Practice and Procedure NSW at [7.150] states” to “LexisNexis Butterworths, Criminal Practice & Procedure NSW, vol 1 (at service 126) [7.150] states”

[244] line 1: Add “Sir” before “Stephen” and added “QC” after “Mitchell”

[245] line 1: add “Sir James” before “Stephen”; in the quote, in the penultimate line delete full stop after “Emphasis added”; add “Sir” in the penultimate line before “James”; and in the last line insert bracket at end of paragraph

[246] line 2: add “Sir James” before “Stephen”

[247] line 1: add “Sir James” before “Stephen”

[268] line 1: add “of” before “Young”

[268] line 1: change “(June 8 1967)” to “(8 June 1967)”

[311] line 1: after “choices“ insert “full stop” and change “however” to “However”

[311] line 4: change “--” to “—”

[369] last line: change “Prosecutor” to “prosecutor”

[385] line 2: change “their” to “the”

[406] the heading before para 406 change “ground” to “Ground”

Decision last updated: 08 August 2019